Madras High Court
Dr.S.Rajagopal vs A.Chidambaram on 21 September, 2021
O.P.No.1001 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 21.9.2021
CORAM
THE HONOURABLE Mr.JUSTICE N.SATHISH KUMAR
O.P.No.1001 of 2019
and O.P.No.30 of 2017
1. Dr.S.Rajagopal
2. R.Vasuki Rajagopal ... Petitioner
Vs.
1. A.Chidambaram
2. S.Venkatraman ... Respondents
Prayer:- Original Petition is filed under Section 14(2) of the Arbitration and
Conciliation Act, 1996 to pass an order of Termination of the Arbitration Case No.1
of 2014 pending before the sole Arbitrator Mr.Justice K.Venkatraman (Retd.).
For Petitioner : Mr.S.M.Muralidharan
For Respondents : Mr.M.Jagajeevan
******
ORDER
This petition has been filed to terminate the Arbitrator appointed by
this Court in Crl.O.P.No.18438 of 2013 which was filed by the petitioners.
2. The present petition has been filed mainly on the strength of
Apex Court judgment passed in KERALA STATE ELECTRICITY BOARD AND ANOTHER
VS. KURIEN E.KALATHIL AND ANOTHER [CIVIL APPEAL Nos.3164-3165 of 2017]
https://www.mhc.tn.gov.in/judis/
O.P.No.1001 of 2019
wherein dispute between the appellant Board and the respondent Contractor has
reached the Apex Court, wherein the Hon'ble Apex Court held that mere oral
consent by the counsel without a joint memo or joint application does not satisfy
the requirement under Sec.89 of C.P.C. Since referring the parties to arbitration
has serious consequences of taking them away from the stream of civil courts and
subject them to the rigour of arbitration proceedings, in the absence of
arbitration agreement, the court can refer them to arbitration only with written
consent of parties either by way of joint memo or joint application; more so, when
Government or statutory body like the appellant-Board is involved and finally set
aside the arbitral award. Absolutely, there is no dispute with the observations
made by the Hon'ble Supreme Court. In the case in hand, pursuant to the
reference, parties have participated in the trial and the trial is also concluded and
the matter also reached arguments stage. At this stage, the period stipulated by
this Court to complete the arbitration proceedings has also expired. The sole
Arbitrator could not proceed with the matter unless the period is extended by this
Court. Under these circumstances, the petitioner has approached this Court to
terminate the sole Arbitrator appointed by this Court in Arbitration Case No.1 of
2014.
3. Heard the learned counsel appearing for the petitioner and the
learned counsel appearing for the respondents and perused the materials available
on record.
https://www.mhc.tn.gov.in/judis/
O.P.No.1001 of 2019
4. In the case of aforesaid judgment of the Hon'ble Supreme Court,
the counsel has given consent without any written memo of instruction for
referring the dispute to Arbitrator. On this ground, the Hon'ble Supreme Court has
held that in the absence of written consent of the parties either by way of joint
memo or joint application, the matter could not be referred to the Arbitrator.
Whereas in the case in hand, very reference itself is made on the basis of consent
expressed by both parties, before the learned Judge of this Court in
Crl.O.P.No.18438 of 2013. The relevant portion of the order reads as under:
“3.. Both sides counsel as well as parties agreed to
that they would resolve the matter regarding the 0.78 cents of
the Survey No.18/10A in front of arbitrator. The arbitral issue
before the learned arbitrator will be only in relation to 0.78
cents and the parties are also ready for amicable settlement
to resolve the issue between themselves. Hon'ble Mr. Justice
K. Venkataraman, (Retd.,) residing at L. 125, 17th Street,
Anna Nagar East, Chennai - 600 102 is appointed as
Arbitrator. Remuneration for the Arbitrator is fixed at the
rate of Rs.40,000/- (Rupees Forty Thousand only) and the
respective parties are directed to pay the remuneration jointly
(each Re.20,000/-). The Hon'ble Arbitrator is directed to
forward a report to this Court with regard to outcome of the
arbitration proceedings within a period of two weeks.''
5. In the instant case, now, trial has been concluded and the matter
is pending for arguments. At this stage, the petitioner cannot take advantage of
https://www.mhc.tn.gov.in/judis/
O.P.No.1001 of 2019
the judgment of the Hon'ble Supreme Court which was passed under different
context wherein the parties have not given written consent to appoint the
Arbitrator.
6. In the result, the O.P.No.1001 of 2019 is dismissed. No costs.
7. Though no application has been filed separately to extend the
period granted to the Arbitrator to dispose of the matter in Arbitration Case No.1
of 2014, as the Original petition filed to terminate the mandate of the Arbitrator
taking note of the Apex Court judgment cited supra, was negatived by this Court
by distinguishing the said judgment referred to by the petitioner, this Court is
inclined to exercise its jurisdiction to extend the time granted to the Arbitrator
without formal application as the filing of such application is not mandatory under
Sec.29-A (5) of the Arbitration and Conciliation Act, but directory in nature. Such
view of the matter, further period of six months granted to the sole Arbitrator to
dispose of the matter in Arbitration Case No.1 of 2014,
8. In view of the final order passed by this Court in O.P.No.30 of 2017,
dated 26.2.2018, nothing survives for adjudication and hence O.P.No.30 of 2017 is
closed.
21.09.2021
https://www.mhc.tn.gov.in/judis/
O.P.No.1001 of 2019
Speaking/Non Speaking order
Index: Yes/No
vaan
https://www.mhc.tn.gov.in/judis/
O.P.No.1001 of 2019
N.SATHISH KUMAR, J.
vaan
O.P.No.1001 of 2019
and O.P.No.30 of 2017
Dated: 21.9.2021
https://www.mhc.tn.gov.in/judis/
